All change for wills and intestacy?

Challenging the intestacy rules

Note: Since this article was first published there have been further legal changes to this area of law. For instance the ‘statutory legacy’ has been increased from £250,000 to £322,000 as from 26 July 2023. It is therefore important that you take expert up to date advice from a specialist solicitor if you are thinking about challenging the intestacy rules.

Challenging the intestacy rules

We are often consulted by people who are shocked that the intestacy rules fail to make financial provision for them when a loved one dies without making a Will.  When this happens we look at the options for challenging the intestacy rules. This can be done under the Inheritance (Provision for Family and Dependants) Act 1975.

The last major changes to the intestacy rules were welcomed by us as they treated the surviving spouse (or civil partner) more generously than previously. Furthermore, arrangements were made for the statutory legacy to increase over time. Schedule 1 of the Act provides that, at least every 5 years, the Lord Chancellor must specify, by statutory instrument, the amount of the statutory legacy.  The Lord Chancellor’s obligation to review is also triggered if the Consumer Prices Index has risen by more than 15%.  In theory therefore the statutory legacy should not fall behind the real level of inflation. However, dependants will continue to suffer hardship and when this happens we are here to help with the process of challenging the intestacy rules.

Are further changes to the intestacy rules required?

There is an underlying concern that the reforms do not go far enough to take account of the changing circumstances of modern family structures in 21st century England and Wales.

The rules of intestacy continue to be out of step with what is happening in society at large. The reforms fail to fully recognise that many couples prefer to co-habit and have children without marrying. These families in particular will continue to suffer injustice under the new regime.

What risks are likely to arise following these changes to the intestacy rules?

When drafting a Will the following points should be considered:

• the definition of chattels under the Act is shortened. There is no longer a prescribed list set out by the Administration of Estates Act 1925, s 55(1)(x). ‘Personal chattels’ now means ‘tangible moveable property’, with some stated exceptions. Those preparing wills need to be aware that in more valuable estates where there may be collections of antiques or art etc which the testator/testatrix may wish to pass alongside his other personal possessions may in fact be excluded from the definition of personal possessions

• clients without a valid Will need to be made aware of the changes to the intestacy rules and the impact on parents and siblings where the deceased dies leaving a spouse or civil partner, but no issue

• similarly, care also needs to be taken where someone has separated from their spouse but has not yet divorced as the surviving spouse’s share of the estate is now materially greater than it was under the old rules

• clients should be advised to give more careful consideration to those who may be regarded as a dependant or a child of the family so they can outline their reasons for excluding them from a will which could be relevant evidence in any defence to a claim made under I(PFD)A 1975

If you are looking for expert guidance on challenging the intestacy rules call us on freephone 0333 888 0409 or send an email to [email protected]


All change for wills and intestacy?